4 Paige Ch. 473 | New York Court of Chancery | 1834
I see no substantial objection to the form of the exceptions for insufficiency which have been allowed by the master. The principles upon which exceptions for insufficiency should be framed, have been so fully discussed in the recent case of Stafford v. Brown, (4 Paige's Rep. 88,) that it would be a useless waste of time for me again to examine that subject particularly. It is only necessary, therefore,
I am satisfied the vice chancellor erred in allowing the complainants the costs of the reference. The 63d rule provides that no part of the costs of the reference, upon exceptions, shall be allowed to the party obtaining such reference.
The only remaining question to be considered is whether an appeal from an order granting or refusing costs, upon an interlocutory proceeding, can be sustained in any case. It is settled that an appeal from such an order will not lie, where the granting or refusing of costs in the particular case, rests merely in the discretion of the court. (Winslow v. Collins, 3 Paige's Rep. 88.) And, as a general rule, the giving or refusing of costs, upon an interlocutory proceeding in chancery, is discretionary merely. But in certain cases, the one party or the other is entitled to costs, under an express statutory enactment, or by a standing rule of the court. Where a party is entitled to costs as a matter of strict right, if the court below refuses to give costs, the erroneous decision of the court may be corrected on appeal. And an appeal also lies where the costs of an interlocutory proceeding have been erroneously